Alito a threat to persons with disabilities

Judge Samuel Alito's paper trail reveals some shockingly narrow views on the rights of people with disabilities. Senators conducting his upcoming confirmation hearing need to question him vigorously in this regard.

Based on his record, Alito, who is President Bush's nominee to replace Justice Sandra Day O'Connor on the U.S. Supreme Court, has the potential to be hostile to the Americans with Disabilities Act (ADA). Several leading disability rights organizations have come out in strong opposition to his nomination.

In 1986, when Alito was deputy assistant attorney general, he helped prepare a Justice Department legal analysis that concluded that nothing in federal law prohibited employers from firing people with AIDS based on "fear of contagion whether reasonable or not." Though many state legislatures and courts at the time took a contrary view and declared discrimination against people with AIDS illegal, Alito told The Washington Post that such declarations haven't "shaken our belief in the rightness of our opinion."

In 1999, in Olmstead v. L.C. and E.W., one of the most important Supreme Court decisions in an ADA case, the high court upheld the rights of two women with disabilities. They were being warehoused in a Georgia state institution against their will, even though their treatment professionals concluded that each of the women could be cared for appropriately in a community-based program. The Supreme Court agreed that this was indeed discrimination, and disability advocates have been able to use this precedent to force state governments to deinstitutionalize people with disabilities.

But before the high court decided on Olmstead, the 3rd U.S. Circuit Court of Appeals on which Alito sat decided a similar case, Helen L. v. DiDario. A three-judge panel of the court also asserted that the ADA outlawed unnecessary institutionalization. When the state of Pennsylvania, which lost the case, asked all 14 judges on the 3rd Circuit to reconsider and reverse the ruling, the court refused to do so. Alito, however, voted to send the case back.

In March 2001, another ADA case came before Alito (Pirolli v. World Flavors). In the case, the plaintiff, Kenneth Pirolli, a man with developmental disabilities and an IQ of 75, charged that his co-workers stuffed him into a garbage can, beat him and tried to sodomize him with a broom.

The lower trial court judge dismissed the case, saying the man experienced nothing more than "macho horseplay" and "adolescent rough-housing." Fortunately, the 3rd Circuit disagreed and reinstated the case. Alito again, however, dissented. According to him, "Pirolli's brief never asserts that his work environment was one that a reasonable, non-retarded person would find hostile or abusive."

In 2002, Alito joined a decision seriously weakening the protections of the Fair Housing Act. He excused local zoning boards from having to identify reasonable accommodations needed to provide equal access for people with disabilities.

Such a record of hostility to the rights of people with disabilities must be scrutinized.

We need Supreme Court justices that respect the rights of all Americans --including those with disabilities.

Mike Ervin is a Chicago-based writer and a disability-rights activist with ADAPT. He is also producer of "The Strength Coach," a nationally syndicated radio talk show. He can be reached at pmproj@progressive.org.